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J HullI recently came across a very interesting legal case, Porter v. American Tobacco Company (1910), that, for me, shed some light on how and why players were included (or not included) in the T206 and other vintage tobacco issues and also on the famous Neal Ball letter that was once part of Barry Halper's collection. The Ball letter (postmarked 2/19/09) reads:
Dear Neil:
I am getting up a scheme with the American Lithograph Company to get out a series of nicely colored pictures of "The star ball players of America" which will be put in cigarette boxes like they used to print the pictures of actors and actresses. I have all the photographs but, under a new law they have here, I will have to get your permission to use them. I am sending a slip which I want you to sign so I can go on and finish up the pictures. It would be a great favor to me if you would send this back as soon as you can. Several of the boys have already sent theirs,
With best wishes, I am.
Your friend,
(signed) Bozeman Bulger
Evening World
In his fine work, Inside T206, Scot Reader notes that there was no federal copyright law that compelled the American Tobacco Company or American Lithograph Company to get permission from players, and he theorizes that ATC could legally have ignored players' refusal to give their consent and included them anyway -- which, in fact, they seem probably to have briefly done with Honus Wagner and Eddie Plank. So it's always been sort of a mystery, to me, what law Bozeman Bulger was referring to. Well, the Porter case closes the loop on that question.
Harry Porter was a famous track and field high-jumper of the era. Above is his T218 card, presumably the center of the controversy in his case. He sued the ATC for allegedly using his likeness without his permission and sought a court order forbidding further production and distribution of his likeness for advertising purposes -- i.e. his T218 card.
The New York appellate court's opinion in his case is brief and concerns only a procedural matter related to the pleadings, but it tells the story and, importantly, provides the New York state statute which required ATC and ALC to get permission of ballplayers before they could be included in tobacco card issues. I don't know whether other states had similar laws at the time, but the size and importance of New York state and New York City as markets for ATC cigarettes makes it pretty certain that this one state law regulated the trust's actions nationally.
I know Ted Z has proposed (convincingly) that Plank and other Philadelphia and Pittsburgh players may have refused their consent to ATC because of commitments to the American Caramel Company, and we all know the notorious refusal by Hans Wagner to be included. Thought someone else out there might like to know the legal teeth that backed up players who, apparently unlike Porter, did refuse their consent.
Jamie
Harry F. Porter, Respondent, v. The American Tobacco Company, Appellant.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
140 A.D. 871; 125 N.Y.S. 710; 1910 N.Y. App. Div. LEXIS 3063
November 18, 1910, Decided
Woodward, J.:
The plaintiff brings this action to secure a perpetual injunction forbidding the defendant to make use of the plaintiff's name and picture for business purposes, and for damages for such use. The complaint alleges that the defendant "wilfully, knowingly and without the written or oral consent of plaintiff, used the name and picture or portrait of plaintiff, a living person, for advertising purposes and for the purposes of trade in the State of New York and elsewhere, from the year 1909 to the present time and still continues to so use plaintiff's name and picture," and this is the gravamen of the action, though other matters are alleged in support of the claim for damages. The defendant denies the material allegations above quoted, and sets up a separate and distinct defense, "that on or about the 5th day of July, 1909, and prior to the use by this defendant of the name, portrait or picture of the plaintiff for advertising purposes or for the purposes of trade, the plaintiff made, executed and delivered a consent in writing as follows," setting out a written consent without date. The plaintiff did not reply to this alleged defense, and the defendant moved the court for an order directing the plaintiff to reply under the provisions of section 516 of the Code of Civil Procedure. The learned justice before whom the motion was made denied the same, the defendant appealing from such order.
Section 516 provides that "where an answer contains new matter, constituting a defence by way of avoidance, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter." The matter is one going peculiarly to the discretion of the court which entertains the motion, and, while it is not beyond the power of this court to interfere, we apprehend that a clear case should be presented to warrant this court in overruling an order of this character. In the case now before us the statute which alone gives the right of action, for none existed at common law, provides that "Any person whose name, portrait or picture is used within this State for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the Supreme Court of this State against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof." (Civil Rights Law [Consol. Laws, chap. 6; Laws of 1909, chap. 14], � 51.) The action is statutory and the plaintiff must, by pleading and proof, bring the action within the terms and conditions of the statute; he must, therefore, plead and prove that the defendant is making use of his name or picture for advertising or business purposes without having first procured the written consent of the plaintiff to make such use of the same. The plaintiff has no cause of action whatever unless he proves that the defendant is making use of his name or picture for advertising or trade purposes without his written consent; that is an essential part of his cause of action, and it may be questioned whether the alleged written consent of the plaintiff to the American Lithographing Company and its customers is "new matter, constituting a defence by way of avoidance." An "avoidance" in pleading is defined to be the introduction of new or special matter, which, admitting the premises of the opposite party, avoids or repels his conclusions. (3 Am. & Eng. Ency. of Law [2d ed.], 523, and authorities cited in notes.) Here the defendant denies that it has made use of the plaintiff's name or picture without his written consent; it raises an issue as to the facts alleged, and places the burden of establishing the fact upon the plaintiff. Its alleged new matter does not avoid the plaintiff's right to recover; it takes from him his cause of action, and that can all be fully and fairly brought out upon the trial of the issue of whether the defendant has made use of the plaintiff's name or picture without his written consent. The plaintiff must affirmatively prove his case, subject to the defendant's right of cross-examination, and it is difficult to see how any end of justice would be promoted by forcing the plaintiff to reply to matter which does not constitute a defense by way of avoidance, but by way of destroying absolutely the cause of action.
The order appealed from should be affirmed.
Hirschberg, P. J., Jenks, Thomas and Rich, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.